Niles v. Cedar Point Club

• Decision Date: 08 February 1898
• Docket Number: 541.
• Citation: 85 F. 45
• Parties: NILES v. CEDAR POINT CLUB.
• Court: U.S. Court of Appeals — Sixth Circuit

85 F. 45

NILES v. CEDAR POINT CLUB.

No. 541.

United States Court of Appeals, Sixth Circuit.

February 8, 1898

The complainant's title depends upon patents from the United States to H. M. Hanna and Phillip La Corse, issued in 1882 and mesne conveyances to complainant.

Gertrude Jane Niles, the appellant, who was defendant below, denied the title of complainant, and claimed the same lands under 11 patents for fractional sections issued to Margaret Bailey in 1834, and under mesne conveyances to the said Gertrude J Niles. Upon the pleadings and evidence there was a decree for the complainant, and a perpetual injunction awarded. The correctness of that decree depends upon the true boundary of the patents to Margaret Bailey. Those patents were for fractional parts of sections, and each was meandered on the southwestern margin of a marsh, having an area of some 4,900 acres, which lies between the meandered line of the Margaret Bailey patents and the open water of Lake Erie. If that meandered line, following the margin of the swamp, was intended as a boundary line, the decree must be affirmed otherwise it must be reversed. The further facts necessary to be stated appear in a stipulation upon which the case was heard below, and are these:

(1) In 1834-35, Ambrose Rice, a government surveyor, surveyed and subdivided fractional township 9 S., in range 9 E., and townships 9 and 10 S., in range 10 E., from the Michigan meridian, and duly certified his field notes of such survey and subdivision to the then surveyor general, Robert T. Lytle. These townships are now in Lucas county, Ohio. In making a survey of these three townships sections 22, 25, 26, and 27, township 9 S., range 9 E., and sections 30, 31, and 32, in township 9 S., range 10 E., and sections 4, 9, 10, and 11, township 10 S., range 10 E., were meandered on the southwestern margin of a marsh, described on one plat as 'a flag marsh,' and on another plat as 'impassable marsh or water.' On the west of this marsh, Rice at the same time surveyed a narrow strip of sand, separating this marsh from the open waters of Maumee Bay, and on the northeast a like strip, separating it from the open waters of Lake Erie. This strip commenced in section 22, township 9, range 9, and ended in section 11, township 10, range 10, and was divided by two openings into the lake, into what Rice called Cedar Sandy and Crane Islands. This strip was meandered on the one side along the open waters of the bay and lake, and on the other side on this same 'flag marsh,' or 'impassable marsh or water.' One of these plats, being that of subdivision of township 9 S., range 9 E., is set out on the opposite page, as exhibiting, in a general way, a portion of the meandered line of the fractional sections, the boundaries of which are here involved.

(2) On the 10th of July, 1844, 11 patents were issued to Margaret Bailey for these 11 fractional sections above mentioned,-- that is, for sections 22, 25, 26, and 27, township 9, range 9, and sections 30, 31, 32, township 9, range 10, and sections 4, 9, 10, and 11, township 10, range 10,-- extending the entire length of this marsh, each patent specifying the number of acres contained between the section line and the meandered line as run by Rice.

(3) The plats and marginal field notes also show that the southerly edge of the 'flag marsh,' 'impassable marsh and water,' was surveyed, and that the lines of the fractional sections southerly of the said marsh and water were identical with the southerly edge of the marsh. The computed areas of the fractional sections and of their respective subdivisions, as shown upon the said plat, conformed to the area included within the said surveyed lines, and did not, nor any thereof, include any part of either marsh, water, or islands. The several patents to Margaret Bailey are of the same date, and each identical in form, except as to description. The description of the patent for section 11, township 10, range 10 E., is here set out as fairly typical of the form and description of all the rest. It is as follows:

'To all to Whom These Presents Shall Come-- Greeting:

'Whereas, Margaret Bailey, of Champaigne county, Ohio, has deposited in the general land office of the United States a certificate of the register of the land office at Bucyrus, whereby it appears that full payment has been made by the said Margaret Bailey according to the provisions of the act of congress of the 24th of April, 1820, entitled 'An act making further provision for the sale of public land,' for fractional section eleven (11), in township ten (10) south of the Michigan base line of range ten (10) in the district of land subject to sale at Bucyrus, Ohio, containing twenty (20) acres and forty-five hundredths of an acre, according to the official plat of the survey of said lands returned to the general land office by the surveyor general which said tract has been purchased by the said Margaret Bailey.'

(4) It appears, from the official correspondence of the land office in evidence, that in 1850 the state of Ohio, under the swamp act of that year, demanded patents for 32,438 acres as swamp land. Patents were issued for all these lands except 6,797 acres, the claim to which was rejected upon the ground that it was not swamp land, 'and nearly all sold.' Of the amount rejected, the greater part consisted of the lands marked 'flag marsh,' 'Impassable marsh and water,' on the plats and in the field notes of Ambrose Rice, being the lands now here in controversy.

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(5) On September 16, 1861, a patent was issued to Chester W. Norton, for 34.89 acres, being the land known as 'Cedar Point,' on the plat of Ambrose Rice, east of Maumee Bay, in township 9 S., range 9 E., of the Michigan meridian. And on the 10th of October, 1876, a patent was issued to Arthur D. Howell for that portion of the sandy ridge shown on the plat of Ambrose Rice as Sandy Island and Crane Island, in section 24, township 9, range 9 E., and in sections 19, 29, 30, 32, and 33, in township 9 S., range 10 E., and in sections 2, 3, 4, and 11, in township 10 S., range 10 E., Michigan meridian, and containing in all 55.55 acres, according to the official plat and survey of the said lands as returned to the surveyor general by said Ambrose Rice.

(6) On the 13th of July, 1874, the general land office issued a circular letter concerning the circumstances under which the department would cause surveys to be made of lands theretofore unsurveyed and platted because of the presence of water. Among other things stated in that circular letter, it was said: 'The beds of lakes (not navigable) sloughs, and ponds over which the lines of the public surveys were not extended at the date of the original survey, but which from the presence of water at the date of such survey were meandered, are held to be the property of the United States; and whenever, by evaporation or the operation of any other cause, natural or artificial, the waters of such lake, slough, or pond have so permanently receded or dried up as to leave within the unsurveyed area dry land, fit in ordinary seasons for agricultural purposes, such dry land is subject to survey and sale under the general laws regulating the disposal of the public domain.'

In April and May, 1891, John B. Marston, a civil engineer residing in Lucas county, under the instructions from the commissioner of the general land office of date April 2, 1881, surveyed and surveyed and subdivided into sections the area which was, as aforesaid, in and upon the surveyor general's plat of Ambrose Rice's survey designated as 'flag marsh' and 'impassable marsh and water,' in said township 9 S., range 9 E., and townships 9 and 10 S., range 10 E., and on May 28, 1881, duly certified his field notes of said survey to the then commissioner of the general land office. This survey was so made, and the area surveyed so subdivided into sections and parts of sections, as to complete and render full, to the extent that the area so then surveyed was in form suitable therefor, the sections which in said Rice's survey were rendered fractional by omission and exclusion from said survey of area designated as 'flag marsh' and 'impassable marsh and water.' The boundary line on the westerly side of the area so surveyed by said Marston, from township 9, range 9, extending somewhat east of north to the southerly extremity of the west part of Cedar Island, is the shore of Maumee Bay; and the boundary line on the southerly and westerly sides of said survey, from the point 2.75 chains easterly of the said line between the surveyed lands and the 'flag marsh' and 'impassable marsh and water,' as shown upon the said plat of the survey made by Ambrose Rice. The land thus surveyed and subdivided by Marston was subsequently patented to H. M. Hanna and Phillip La Corse, from whom the appellee holds deeds conveying all the rights of the said patentees thereunder. Concerning the character of the marshy land thus patented to Hanna and La Corse, the facts as stipulated by the parties in interest are these:

'(16) At the time of the making of the survey by Ambrose Rice, the waters of Lake Erie were above their ordinary stage, and there was more than the usual volume of water standing upon the land in controversy herein, and flowing to and upon the same from the large bodies of land, now in Ottawa, Wood, and Lucas counties, respectively, having their drainage to and through the said premises in controversy herein.

'(17) The general character, description, and condition of the said land surveyed by said Marston was by him correctly set forth, under the title 'General Description,' in the field notes of the said survey so as aforesaid by him certified to the commissioner of the general land office.

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